Toronto city council is committing an illegal "hanging" of Mayor Rob Ford, and the mayor has the right to seek an immediate court-ordered halt to it, says his lawyer, George Rust-D'Eye.
"They are attempting to punish the mayor – it was kind of a symbolic hanging," Mr. Rust-D'Eye said in an interview. He was awaiting a meeting with the mayor to discuss whether to go ahead with a legal challenge.
If the mayor were to be granted a stay, he could regain the powers stripped from him this week for a period of several months while the issues are being heard in court.
The mayor could argue that he has been deprived of his ability to carry out his duties under the City of Toronto Act, and that the procedure was unfair because he was not given notice ahead of time and city staff made no attempt to investigate his behaviour, make recommendations or explain the implications of what council was doing, he said.
"I was at the five-hour council meeting [on Monday]. At the start of the meeting at 12:30, a new notice of motion had been placed on all the councillors' desks. I wasn't aware of it. The mayor wasn't aware of it. I found out about it about an hour into the meeting and finally got a copy of it," said Mr. Rust-D'Eye.
Council suspended its rules of procedure for the meeting, at which they reduced Mr. Ford's budget and staff by 60 per cent, and gave deputy mayor Norm Kelly all powers of the mayor not set out in provincial law, such as chairing the executive committee.
"I don't think you can suspend the rules of procedure without at least giving some degree of fair notice as normally required under the bylaw," Mr. Rust-D'Eye said. "You can't just ad-hoc the whole thing. You know, 'let's all have a meeting and discuss a bunch of very serious actions against the mayor but don't bother giving him notice of it."
Mr. Rust-D'Eye was solicitor for Metro Toronto for three years in the late 1980s, and in the mid-1990s oversaw the writing of Ontario's City of Toronto Act, which sets out the rights and duties of the mayor and council.
Trying to stop council from taking away Mr. Ford's duties would involve an application to the Ontario Superior Court of Justice. The argument would be that while council cannot force him from power, "they're trying to do it indirectly by trying to take away the powers and assets that he needs to carry on his office," Mr. Rust-D'Eye said.
It would probably be a couple of months before the mayor's attempt to quash the bylaws is heard. In the meantime, "there's also the power under the act to bring an early application to stay council's decision, pending the outcome of the litigation. That would be brought on quite quickly."
Ordinarily, when a council member faces allegations of misconduct, the city's Integrity Commissioner would be asked to investigate, Mr. Rust-D'Eye said. In Mr. Ford's case, there have been reams of unproven allegations about Mr. Ford's behaviour, in police material used to obtain a search warrant in an investigation of Mr. Ford and several other people. Mr. Ford has admitted to smoking crack cocaine while mayor.
Council established a code of conduct, and "the obvious way to establish exactly what happened in a fair setting in which the mayor would have an opportunity to have input would be to have the Integrity Commissioner conduct her investigation, report back and recommend what the council should do," Mr. Rust-D'Eye said.
"Instead, the council decided without any investigation or findings of fact. . . to systematically one by one, [remove] even the right of the mayor to decide what order of speaking should take place at council."
He said he will advise Mr. Ford on what his chances of success would be in court. "I'm afraid that's solicitor-client [privilege]. I'll keep that for him."